P. v. Boyd

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Filed 1/29/10 P. v. Boyd CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Appellant,
v.
CHARLES ALEXANDER BOYD,
Defendant and Respondent.
E048848
(Super.Ct.No. SWF018101)
O P I N I O N
APPEAL from the Superior Court of Riverside County. Edward D. Webster,
Judge. Affirmed.
Rod Pacheco, District Attorney, and Alan D. Tate, Deputy District Attorney, for
Plaintiff and Appellant.
Patrick J. Hennessey, Jr., under appointment by the Court of Appeal, for
Defendant and Respondent.

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I. INTRODUCTION
The People appeal from an order dismissing an information charging defendant
Charles Alexander Boyd with two misdemeanors, after the court determined there were
no courtrooms available to try the case on May 18, 2009, the last day it could have been
tried without violating defendant‟s speedy trial rights. (Pen. Code, §§ 1050, subd. (a),
1382.)1 The People claim the court violated section 1050, subdivision (a) and therefore
necessarily abused its discretion in applying an “inflexible policy,” namely, a written
“dismissal policy,” adopted by the court on October 10, 2008, which provides that the
court will not, under any circumstances, assign criminal jury trials to temporary judges
designated to conduct civil trials, or to departments designated to hear family law,
juvenile, probate, guardianship, and master calendar matters.
The People argue the court acted arbitrarily in adhering to its dismissal policy and
in refusing to “truly consider the use of many civil or non-criminal courtrooms and
judges in order to prevent the dismissal of this last-day criminal case.” The People
maintain the court should have checked with all departments handling noncriminal
matters on May 18, 2009, and determined whether any of the matters being heard in those
departments would have been actually prejudiced by interrupting or suspending them,
and assigning defendant‟s misdemeanor case for trial in that department.
For the reasons we explain, the court did not violate section 1050, subdivision (a)
and did not abuse its discretion in refusing to assign defendant‟s case to a courtroom
1 All further statutory references are to the Penal Code unless otherwise indicated.

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previously designated to hear civil or other noncriminal matters. The court‟s dismissal
policy is not arbitrary, and that is all that section 1050, subdivision (a) requires. We
therefore affirm the order dismissing the charges.2
II. STATEMENT OF FACTS3
On August 29, 2006, California Highway Patrol Officer Hector Barragan stopped
defendant following a report by a Caltrans worker that defendant failed to stop for
ongoing construction. It was later determined that the vehicle defendant was driving was
stolen, and defendant had given Officer Barragan false information concerning his
identity.
III. PROCEDURAL BACKGROUND
On September 15, 2006, a complaint was filed charging defendant with unlawfully
driving or taking a vehicle, a felony (Veh. Code, § 10851, subd. (a)), driving on a
suspended license, a misdemeanor (Veh. Code, § 14601, subd. (a)), and providing false
information to a police officer, a misdemeanor (Pen. Code, § 148.9, subd. (a)).
2 The People acknowledge that in People v. Wagner (2009) 175 Cal.App.4th 1377
(Fourth Dist., Div. Two) (review granted Sept. 30, 2009, S175794) and People v. Flores
(2009) 173 Cal.App.4th Supp. 9, this court and the appellate department of the superior
court, respectively, rejected claims identical to the claims the People raise here. (See also
People v. Cole (2008) 165 Cal.App.4th Supp. 1.) The People argue, however, that the
reasoning of Wagner and Flores is erroneous and should be reconsidered. On October
14, 2009, we denied the People‟s request to stay the present appeal pending the state
Supreme Court‟s review of the Wagner decision.
3 Because the charges against defendant were dismissed before he could be
brought to trial, this statement of facts is based on the evidence taken at the January 23,
2008, preliminary hearing.

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Defendant pled not guilty. Following a preliminary hearing on January 23, 2009,
defendant was held to answer all charges.
On February 6, 2008, an information was filed alleging the same charges, and
defendant again pled not guilty. On May 8, 2009, the court granted the People‟s motion
to dismiss the felony charge in the interests of justice. (§ 1385.) A jury trial on the two
misdemeanor charges was set for May 15. The last day to commence trial was May 18.
On May 15, the matter was trailed to May 18 pursuant to the People‟s motion. On
the morning of May 18, the parties appeared in department S62B of the Southwest Justice
Center in Murrieta and announced ready for trial. They were then ordered to appear at
3:30 p.m. in department 62 of the Riverside Hall of Justice in Riverside. When they
appeared in department 62, counsel on two other criminal cases, in addition to
defendant‟s case, announced ready for trial, and no courtroom was available to try any of
the three cases.
The court told the prosecutor, who was representing the People on all three cases,
that: “[A]s you well know, it‟s been a struggle, and we‟ve looked high and low, and
we‟ve found cases to stipulate to the next day, and there‟s no courtroom available. I
didn‟t call Judge Tranbarger, because I know that you still would be in the position that
you‟ll be affidaviting Judge Tranbarger. As far as I know, Judge Trask is not here today,
so she will not be available. Judge Hopp is in a civil trial. And I know you do have
objections, but he‟s been designated by Judge Cahraman, but he‟s the only traditional
civil department available for trial. I‟ll let you make your statement at this time. Again,

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I‟m incorporating the dismissal script prepared by Judge Hernandez, on October 10th of
2008, into each of the three cases.[4] [The prosecutor‟s] objections and statements will
also be incorporated into each of those three cases as well.”
The prosecutor told the court: “It is the position of the People [that section 1050]
sets forth a preference for criminal cases over any civil matter or proceedings. The Court
currently has one designated courtroom, Judge Hopp in Indio, that is designated to solely
do civil cases here today. We believe that expressly goes against [section 1050] and
object to that here. We believe that the Court should also be looking to family law,
probate, guardianship, and other specifically designated non-criminal departments for a
home for these jury trials. We disagree with the Courts‟ policy of not checking those
courtrooms to determine if any of them are available to hear one of these jury trials.
“The People believe that the judicial counsel [sic] cannot order this Court to
deviate from [section 1050]; therefore, we believe that any Hawthorne and Palm Springs
court judges that are not currently hearing criminal cases should be hearing one of those
cases. They can use one of our courtrooms, if necessary, for security. Finally, it is the
position of the People that if the Court has done everything required of it to find a
courtroom and none appear available, then that constitutes good cause and these cases
should be continued for one day. The People object to any dismissals that occur on these
cases because of what is termed a lack of available courtrooms. Thank you.”
4 A copy of Judge Hernandez‟s October 10, 2008, “dismissal script” is included in
the record and is attached to this opinion as exhibit A.

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The court then scheduled motions to dismiss the three cases on the following day,
May 19. On May 19, the People opposed defendant‟s motion to dismiss based on the
comments the prosecutor made in court on May 18. The court granted the motion and
dismissed the misdemeanor charges against defendant on the ground trial was not
commenced on or before the last day it could have commenced without violating
defendant‟s speedy trial rights. The People appeal from the order of dismissal and seek
reinstatement of the charges.
IV. ANALYSIS
A. Standard of Review
“The right to a speedy trial is a fundamental right. [Citation.] It is guaranteed by
the state and federal Constitutions. [Citations.] The Legislature has also provided for „“a
speedy and public” trial as one of the fundamental rights preserved to a defendant in a
criminal action. [Citation.]‟ [Citation.] To implement an accused‟s constitutional right
to a speedy trial, the Legislature enacted section 1382. [Citation.]” (Rhinehart v.
Municipal Court (1984) 35 Cal.3d 772, 776.)
“Section 1382 provides statutory deadlines for bringing a criminal defendant to
trial. If these deadlines are not met, and no good cause is shown, then a defendant has a
statutory right to have the claims against him dismissed.” (Baustert v. Superior Court
(2005) 129 Cal.App.4th 1269, 1275.)
Here, the court dismissed defendant‟s misdemeanor case because it had not been
brought to trial within the time required under section 1382. As indicated, the case was

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not timely brought to trial because the court determined there were no courtrooms
available on May 18, 2009, the last day it could have been timely tried pursuant to section
1382. The court also implicitly determined that the lack of a courtroom to try the case
did not constitute good cause to continue the case, indefinitely, until a courtroom became
available. Thus, the issues to be decided on this appeal are (1) whether the court
erroneously determined there were no courtrooms available to try defendant‟s
misdemeanor case (§ 1050, subd. (a)), and (2) whether the court should have granted the
People‟s request for a continuance until a courtroom became available (§ 1382).
The People argue the court‟s determination that there were no courtrooms
available to try defendant‟s case on May 18, 2009, was not a matter of judicial discretion
subject to review for an abuse of discretion, but a question of law subject to de novo
review. They point out that, in the present case, the court‟s determination that no
courtrooms were available was based on undisputed facts concerning the uses of
Riverside County courtrooms on May 18, 2009. (People v. Waidla (2000) 22 Cal.4th
690, 730 [an appellate court applies the independent or de novo standard of review to a
trial court‟s resolution of pure questions of law and mixed questions of law and fact that
are predominantly legal].) The People concede, however, that a court‟s determination
that there is no good cause to continue a case beyond the statutory speedy trial period is
generally reviewed for an abuse of discretion. (People v. Memro (1995) 11 Cal.4th 786,
852; People v. Baustert, supra, 129 Cal.App.4th at p. 1275.)

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As will appear, section 1050, subdivision (a) afforded the court ample discretion to
determine whether any courtrooms were available to try defendant‟s case. We therefore
review the court‟s determination that no courtrooms were available for an abuse of
discretion. (§ 1050, subd. (a).) We then address whether the court abused its discretion
in determining that the lack of an available courtroom on May 18, 2009, did not
constitute good cause to continue the case, indefinitely, until a courtroom became
available. (§ 1382.)
B. Section 1050, Subdivision (a) Afforded the Court Ample Discretion to Determine
Whether a Courtroom Was Available to Try Defendant’s Criminal Case
Section 1050, subdivision (a) states, in pertinent part, that criminal cases “shall be
set for trial and heard and determined at the earliest possible time,” and expedited “to the
greatest degree that is consistent with the ends of justice. In accordance with this policy,
criminal cases shall be given precedence over, and set for trial and heard without regard
to the pendency of, any civil matters . . . .”5 (Italics added.) Despite the statute‟s use of
5 Section 1050, subdivision (a) states in full: “The welfare of the people of the
State of California requires that all proceedings in criminal cases shall be set for trial and
heard and determined at the earliest possible time. To this end, the Legislature finds that
the criminal courts are becoming increasingly congested with resulting adverse
consequences to the welfare of the people and the defendant. Excessive continuances
contribute substantially to this congestion and cause substantial hardship to victims and
other witnesses. Continuances also lead to longer periods of presentence confinement for
those defendants in custody and the concomitant overcrowding and increased expenses of
local jails. It is therefore recognized that the people, the defendant, and the victims and
other witnesses have the right to an expeditious disposition, and to that end it shall be the
duty of all courts and judicial officers and of all counsel, both for the prosecution and the
defense, to expedite these proceedings to the greatest degree that is consistent with the
ends of justice. In accordance with this policy, criminal cases shall be given precedence
[footnote continued on next page]

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the phrase “without regard to,” the language of the statute as a whole does not evoke an
absolute rule that criminal trials must always take precedence over pending noncriminal
matters regardless of the circumstances. (People v. McFarland (1962) 209 Cal.App.2d
772, 777, citing People v. Osslo (1958) 50 Cal.2d 75, 106 (Osslo).) As the court in
McFarland observed: “It is obvious that these provisions do not impose an arbitrary
standard because the purposes to be achieved expressly are subservient to the „ends of
justice.‟” (People v. McFarland, supra, at p. 777.)
Osslo illustrates that section 1050, subdivision (a) affords courts ample discretion
in determining whether to give a criminal case trial preference over noncriminal matters.
The defendant in Osslo objected to his criminal case being continued beyond its original
trial date when civil cases were being tried in other departments. (Osslo, supra, 50
Cal.2d at pp. 104-105.) In response, the court indicated that its “general policy” was to
give precedence to criminal trials when the defendant was in custody and could not make
bail. (Id. at p. 105.) The defendant in Osslo was free on bail, however. The court further
explained that, but for the fact that attorneys were willing to serve as judges pro tem, the
court would “simply be bogged down with nothing but a number of these short jury trials
where the defendants are in jail awaiting trial.” (Ibid.) Finally, the court indicated that
[footnote continued from previous page]
over, and set for trial and heard without regard to the pendency of any civil matters or
proceedings. In further accordance with this policy, death penalty cases in which both
the prosecution and the defense have informed the court that they are prepared to proceed
to trial shall be given precedence over, and set for trial and heard without regard to the
pendency of, other criminal cases and any civil matters or proceedings, unless the court
finds in the interest of justice that it is not appropriate.”

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the trial of a person confined as mentally ill was being held in one department, and the
juvenile calendar was “„very congested.‟” (Id. at pp. 105-106.) The court thus implied
that civil cases, other noncriminal matters, and criminal cases involving incarcerated
defendants were, at least generally, entitled to some degree of consideration or
precedence in assigning cases for trial.
On appeal, the defendant in Osslo argued that the continuance of his case beyond
its original trial date violated former sections 681a and 1050, subdivision (a).6 (Osslo,
supra, 50 Cal.2d at p. 106.) The state high court interpreted the statutes as requiring that
criminal trials not be “deprived of precedence over civil cases for any arbitrary reason,”
and further observed that, under the statutes, “[t]he precedence to which criminal cases
are entitled is not of such an absolute and overriding character that the system of having
separate departments for civil and criminal matters must be abandoned.” (Ibid., italics
added.)
The Osslo court concluded that “the policy” of former sections 681a and 1050,
subdivision (a) had not been “disregarded” in the defendant‟s case, in view of the reasons
6 At the time Osslo was decided in 1958, section 1050, subdivision (a) provided
only that “[c]riminal cases shall be given precedence over all civil matters and
proceedings.” (See Osslo, supra, 50 Cal.2d at p. 106.) Section 681a then provided that:
“The welfare of the people of the State of California requires that all proceedings in
criminal cases shall be heard and determined at the earliest possible time. It shall be the
duty of all courts and judicial officers and of all district attorneys to expedite the hearing
and determination of all such cases and proceedings to the greatest degree that is
consistent with the ends of justice.” (Osslo, supra, at p. 106.) In 1959, the Legislature
repealed former section 681a and amended section 1050, subdivision (a). (Stats. 1959,
ch. 1693, §§ 1, 2, pp. 4092-4093.) The full text of section 1050, subdivision (a), in its
current form, is set forth in footnote 5, ante.

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the calendar judge gave for not giving the defendant‟s case trial precedence over civil
case and other noncriminal matters. (Osslo, supra, 50 Cal.2d at p. 106.) More generally,
the court concluded that the statutes did not evince an absolute rule that criminal trials
must always be given precedence over civil matters and all other noncriminal matters,
regardless of the circumstances. This is the clear import of the court‟s observation that:
“The precedence to which criminal cases are entitled is not of such an absolute and
overriding character that the system of having separate departments for civil and criminal
matters must be abandoned.” (Ibid.)
Osslo is still good law, and illustrates that section 1050, subdivision (a) does not
evoke an absolute rule that criminal cases must always be given trial preference over
noncriminal matters, regardless of the circumstances. Instead, the statute affords courts
ample discretion to determine whether a criminal case should be given trial preference
over noncriminal and other criminal matters, in view of the court‟s overall workload and
the relative interests of both criminal and noncriminal litigants having cases pending
before the court. The court must not exercise its discretion in an arbitrary manner,
however. (Osslo, supra, 50 Cal.2d at pp. 104-106.)
C. The Court Did Not Abuse Its Discretion in Determining There Were No Courtrooms
Available to Try Defendant’s Case
The People further argue that, if the court had discretion under section 1050,
subdivision (a) to determine there were no courtrooms available to try defendant‟s case,
then it necessarily abused that discretion because it “refused to even consider”

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transferring this last-day criminal case to a courtroom hearing family law, juvenile law,
probate, or guardianship matters, to any of the temporary courtrooms at the Hawthorne
Elementary School designated to handle civil trials, or to Judge Hopp in Indio who was
also handling civil matters. Instead, the People argue, the court erroneously relied on its
“inflexible” dismissal policy and the “general importance” of noncriminal matters
pending before the court in refusing to assign defendant‟s case for trial.
As discussed, section 1050, subdivision (a) affords courts ample discretion to
determine whether a criminal case should be given trial preference over noncriminal
matters and other criminal matters, in view of the court‟s overall workload and the
interests of both criminal and noncriminal litigants having cases pending before the court.
In addition, section 1050, subdivision (a) does not require courts to abandon their practice
of designating separate departments to handle criminal and noncriminal matters. The
court must not exercise its discretion in an arbitrary manner, however. (Osslo, supra, 50
Cal.2d at pp. 104-106.)
The court‟s “dismissal policy” is neither arbitrary nor inflexible as the People
maintain. Instead, the policy reflects a well-reasoned and well-considered exercise of the
court‟s discretion in view of its overall workload and the general importance of
noncriminal matters pending before the court at any given time. (Osslo, supra, 50 Cal.2d
at pp, 104-106.)
The policy first provides that criminal jury trials will not be assigned to the family
law, juvenile, guardianship, probate, or master calendar courts, under any circumstances,

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and explains why. Each of these courts conducts important business that affects the lives
of children or other members of the public. The judges in the family law court, for
instance, have “full calendars” and protect the needs of children of divorcing families. If
a family law judge is required to handle a criminal jury trial, there is no one to replace
that judge in family law court. The policy states similar reasons for not requiring the
juvenile or probate court judges, or the sole judicial officer handling guardianships, to
abandon their busy calendars in order to conduct criminal jury trials. Nor will the court
assign criminal jury trials to its calendar courts, because these courts “handle hundreds of
cases each day,” and the cases would be dismissed if the calendar judge were not there to
handle them.
There is nothing arbitrary about these aspects of the court‟s dismissal policy. As
discussed, section 1050, subdivision (a), as interpreted in Osslo, allows superior courts to
designate separate departments for civil and other noncriminal matters, and use those
departments solely to hear those matters. The policy also explains in detail why the
business of the family law, juvenile, probate, guardianship, and calendar courts must not
be interrupted or suspended in order to conduct criminal trials, and demonstrates that the
court‟s designation of separate departments to hear these matters is not arbitrary.
The policy further states that there are four “visiting Judges” assigned for the sole
purpose of conducting civil jury trials in two temporary facilities, one at Hawthorne
Elementary School in Riverside and the other in the “desert area,” apparently meaning
Judge Hopp in Indio. The policy provides that these four judges and two facilities will

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not, under any circumstances, be used for criminal jury trials because the facilities have
inadequate security; hence, conducting criminal jury trials in them would be unsafe for
jurors, the district attorney, defense counsel, and witnesses. And, although one of these
four judges could “theoretically” be moved to a secure courtroom in the Riverside Hall of
Justice, the court would not do so because the Administrative Office of the Courts had
assigned all four of the judges to Riverside County “for the specific purpose” of
conducting civil trials. Thus, unless ordered to do so, the court would not use any of the
four judges or two temporary facilities to conduct criminal jury trials.
There is nothing arbitrary about this aspect of the policy either. As indicated in
People v. Flores, supra, 173 Cal.App.4th Supp. at page 22, very few civil cases were
being tried in Riverside County before the Hawthorne judges were appointed. In
addition, the court had already given “extraordinary precedence to criminal trials over
traditional civil matters,” and still lacked the resources necessary to try all criminal cases
in a timely manner. (Id. at p. 23.) In view of the ongoing backlog of civil cases in the
county and the lack of permanent judges and facilities to try them, the court‟s policy of
designating the temporary Hawthorne and Indio judges and facilities solely to try civil
cases was reasonable and well considered.
Lastly, the policy states that the court‟s civil courtrooms—apparently courtrooms
other than the Hawthorne and Indio facilities—are “frequently” made available for
criminal jury trials, and most civil courtrooms are used for civil and criminal matters.
The policy also states: “We will not interrupt an ongoing civil jury trial except in the

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rarest and most exigent of circumstances.” (Italics added.) This aspect of the policy is
certainly not arbitrary. Interrupting an ongoing civil jury trial will almost certainly waste
the civil litigants‟ resources to their detriment or “actual prejudice.” Still, this aspect of
the policy is flexible because it allows for the possibility that an ongoing civil trial may
be interrupted so that, for example, an important last-day criminal case could be sent to
that courtroom for trial. It is reasonable, however, for the court to require that an ongoing
civil jury trial will be interrupted only “in the rarest and most exigent of circumstances.”7
The People assert that section 1050, subdivision (a) requires the master calendar
court to inquire, on any given day, whether noncriminal matters being heard in any of the
county‟s courtrooms would be actually prejudiced if a criminal trial were assigned to that
courtroom that day. Not so. This is an insurmountable task and is not required by
section 1050, subdivision (a). Moreover, the court‟s dismissal policy demonstrates that
the court reasonably determined that noncriminal matters would generally be prejudiced
if interrupted or suspended so that a criminal jury trial could be conducted in courtrooms
previously designated to handle those matters.
In sum, the court‟s dismissal policy is not arbitrary; it is well considered and
reasonably accounts for the interests of criminal defendants and all other persons having
7 The policy further states there is “one [c]ivil [j]udge,” apparently Judge
Tranbarger, whom the Riverside district attorney routinely “papers” or peremptorily
challenges pursuant to Code of Civil Procedure section 170.6 every time a criminal case
is assigned to him. The policy states that if a criminal case is assigned to this judge and
he is peremptorily challenged, “an additional „last day‟ is not created,” meaning there
will not be good cause to continue the case to another day. The People do not challenge
this aspect of the policy, so we do not address it here.

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business before the court or interests the court is charged with protecting. The policy is
also flexible in at least one respect: it allows for the possibility that an ongoing civil jury
trial in a permanent and secure courtroom may be interrupted to conduct a criminal jury
trial, albeit “in the rarest and most exigent of circumstances.” Here, however, the
prosecutor made no effort to argue that “rare and exigent” circumstances required the
court to interrupt a civil jury trial so that defendant‟s misdemeanor case could be tried.
D. The Court Did Not Abuse Its Discretion in Determining Good Cause Had Not Been
Shown to Continue Defendant’s Case
As indicated, on May 18, 2009, the last day to try defendant‟s case, the prosecutor
argued to the court that the lack of an available courtroom constituted good cause to
continue the case, indefinitely, until a courtroom became available. At the dismissal
motion on May 19, the People submitted the matter based on the prosecutor‟s argument
made on the previous day. On this appeal, the People suggest that the lack of an
available courtroom on May 18 constituted good cause to continue the case, indefinitely,
until a courtroom became available. Not so.
“Court congestion will constitute good cause [to deny a section 1382 motion to
dismiss] only when the congestion is „attributable to exceptional circumstances.‟”
(People v. Rhinehart, supra, 35 Cal.3d at p. 782, fn. omitted, citing People v. Johnson
(1980) 26 Cal.3d 557, 571-572.) Defendant‟s case was dismissed due to the chronic
congestion of the Riverside County Superior Court. These were not exceptional
circumstances. Thus, the court property determined that the lack of an available

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courtroom to try defendant‟s case on May 18, did not constitute good cause to continue
the case, indefinitely, until a courtroom became available.
V. DISPOSITION
The order of dismissal is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
/s/ King
J.
We concur:
/s/ Richli
Acting P.J.
/s/ Miller
J.

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